State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0126

State of Minnesota,
Respondent,

vs.

Joshua Alan Galle,
Appellant.

Filed April 13, 2020
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Hennepin County District Court
File No. 27-CR-17-19854

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Jesson, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
While waiting at a stoplight, appellant Jos hua Alan Galle assaulted another driver
by, among other things, kicking him in the head “like you’d kick a soccer ball.” As a result

2
of the assault, the other driver suffered a concussion and a fracture in his left tibia. Based
on Galle’s actions, a jury convicted him of first, third, and fifth-degr ee assault. Because
we conclude that the victim’s injuries do not amount to “gre at bodily harm,” we reverse
Galle’s first-degree assault conviction. But because the evidence supports the conviction
of third-degree assault, we affirm that co nviction and reverse the fifth-degree assault
conviction as a lesser-included offense. As a result, we remand to the district court for
resentencing and correction of the warrant of commitment.
FACTS
At around 10:30 in the morning in late July 2017, D.E. invited some friends over to
use his pool. Although he had to work that afternoon, D.E. hung out with his friends for
about 45 minutes, drinking one or two gin and to nics. D.E. left for work around 3:30 in
the afternoon.
While D.E. was waiting at a stoplight on the drive, he briefly exchanged words with
the driver of the car next to him, who was la ter identified as appellant Joshua Alan Galle.
D.E. described the exchange as a “what’s your problem” situa tion. D.E. recalled that the
driver of the other vehicle suddenly opened his door and ran toward him at full speed with
rage in his eyes. D.E. remembered getting out of his car to appr oach the driver and
“deflect” him. According to D.E., in an effort to defend himself, he “[put] his foot to [the
driver’s] chest to change [his ] trajectory.” The next thi ng D.E. remembered was waking
up to police tapping on his car window.
Although D.E. did not remember what ha ppened during the bulk of his encounter
with the other driver, two witnesses provided details. One witness, A.J., was getting off

3
work when she saw one man att acking another person at a st oplight. According to A.J.,
the “bigger guy” (Galle) dragged D.E. out of his car, slamme d him to the ground, kicked
him in the head, and punched him. A.J. believed that the attacker “put [D.E.] to sleep” and
that D.E. appeared to be unconscious on th e ground for “a good minute.” A.J. called the
police.
The second witness, J.D., also observed the attack. J.D. saw two vehicles next to
each other at a stoplight and noticed a man get out of one of the vehicles. J.D. thought the
man looked angry and “could tell it was gonna get bad.” J.D. heard yelling and everything
“went south really fast.” Again, he saw the bigger man (Galle) kick D.E. in the head while
he was on the ground “like you’d kick a soccer ball.” This caused D.E. to go “limp.” J.D.
told the man “I think you just killed him,” which caused the man’s de meanor to change.
The man made some comments indicating D.E. was okay and helped D.E. to the curb. But
then the man got in his car and drove away. J.D. took some photos and a short video of
the encounter, including a photo of the man’s license plate.
Meanwhile, D.E. appeared to be “coming to,” although he seemed groggy. J.D. told
him that he probably should not drive, but D.E. got back in his car and drove away. Shortly
after, police found D.E. in his car in a parki ng lot not far from where the attack occurred.
An officer noticed a lu mp on D.E.’s head and blood on his lip and observed that D.E.
seemed confused and could not answer basic questions. The officer called an ambulance,
which took D.E. to the hospital. According to the paramedic, D.E.’s mental state seemed
to improve during the ride to the hospital.

4
At the hospital, doctors evaluated D.E., in cluding performing tests to check for head
and neck injuries. Those tests revealed no intracranial injury, brain bleed, or skull fracture.
Accordingly, the doctor diagnosed D.E. with a concussion and an abrasion to his elbow
and released him a few hours later. During the hospital evaluation, D.E. did not complain
of leg pain.
When D.E. woke up the next morning, his knee was swollen to “the size of a
football.” When the swelling did not go away the next day, D.E. went to get his knee
x-rayed. Although initially missed by doctors, a plateau fracture in his left tibia 1 and an
ACL sprain were revealed by a subsequent MRI. The orthopedic doctor gave D.E. crutches
and a leg brace and told him to avoid bearing weight on his leg for four to six weeks.
While D.E. was recovering from his injuri es, police searched for the driver who
attacked him. Using the photo of the license plate, police identified the vehicle’s owner as
Galle. Police arrested him, and the state charged him with one count of third-degree
assault. Several months later, the state am ended the complaint, adding one count of
first-degree assault, and the case proceeded to a jury trial.
At trial, both witnesses testified abou t what happened, as described above.
Additionally, both witnesses stat ed that they did not rememb er seeing D.E. kick Galle.
And one witness explained that D.E. was on th e defensive during the attack. D.E. also
testified about what he remembered and his injuries, as noted above.

1 D.E.’s sports medicine physician described this injury as a break in the tibia, the larger
bone located in a person’s shin. According to the physician, the injury occurred on the
outside of the bone, near the top.

5
Much of the trial testimony focused on the nature and extent of D.E.’s injuries. D.E.
described the symptoms stemming from his concussion. Initially, he could only stay awake
for 15 to 20 minutes at a time, had terri ble headaches, and was very bothered by any
background noise. As time progressed, D. E. developed “debilitating” headaches that
would last for 10 to 20 seconds and “stop [h im] in [his] tracks.” He also experienced
difficulty sleeping and eating. D.E. stated that his vision was “noticeably worse,” although
he testified that he had an eye condition prior to the attack that a ffected his eyesight.
Regarding the leg fracture, D.E. testified that, at the time of trial, his knee still ached from
time to time and was not “100 percent” better. Ultimately, D.E. testified that he was unable
to work for about four months, mostly related to his concussion symptoms.
To recover from his injuries, D.E. attende d physical therapy, occupational therapy,
and consulted with a speech-language pathologist. Each of those professionals testified at
trial. D.E.’s sports medicine physician testified about the leg fracture. She described the
injury as the outside part of the tibia bone being broken and noted that the fracture extended
into D.E.’s cartilage. And a lthough D.E. had an ACL spra in, it was not significant.
According to the orthopedic doctor, at a follow-up appointment roughly five to six weeks
after the assault, D.E.’s x-rays appeared normal, and the swelling had improved.
D.E.’s speech-language pat hologist testified about D.E.’s concussion. A
concussion, according to the speech-language pathologist, is a mild traumatic brain injury.
She explained that D.E. described difficulty tolerating noise, slow thinking, and memory
issues. Although it is common for patients with a concussion to perceive their memory as
affected, she testified that memory loss is not a common symptom of a concussion. Rather,

6
people believe that they experience memory changes because the concussion impacts their
speed of thinking and ability to pay atten tion. Further, she e xplained that D.E.’s
performance on tests was consistent with someone who experienced a concussion.
Finally, D.E.’s occupational therapist de scribed evaluating him for post-concussion
syndrome. Post-concu ssion syndrome involves headach es, eyestrains, and decreased
endurance and tolerance, all of which D.E. reported. As a result, she diagnosed D.E. with
post-concussion syndrome. To manage his symptoms, she recommended that he wear
sunglasses and headphones (even while indoor s), avoid screen time, and take frequent
breaks. After three sessions, D.E. stopped a ttending occupational therapy, reporting that
he could complete work-related tasks with out difficulties caused by his concussion
symptoms.
At the close of the stat e’s case, Galle moved for a judgment of acquittal for the
first-degree-assault charge, arguing that D.E .’s injuries did not amount to great bodily
harm. The district court denied his motion, reasoning that the totality of the circumstances,
construed in favor of the state, presented a question for the jury about whether the fracture
and head injury amounted to great bodily harm. Galle then requested a jury instruction on
fifth-degree assault, which the district court granted. After closing arguments, the case was
submitted to the jury. After deliberating, the jury returned a verdict of guilty on all three
counts of assault.
2

2 During deliberations, the jury inquired about the meaning of “protracted” in the statutory
definition of great bodily harm. The district court directed the jury to the instructions,
which did not define protracted. Later, the jury asked what to do if they were in agreement
about the third-degree-assault charge but could not agree about first-degree assault. The

7
At sentencing, Galle again moved for a judgm ent of acquittal on the
first-degree-assault charge, which the district court denied. The district court sentenced
Galle to the presumptive guidelines sentence of 146 months in pr ison for first-degree
assault. And the district court did not pr onounce sentences for third and fifth-degree
assault, stating that they w ould “merge” with the first-degr ee-assault conviction. But the
warrant of commitment reflects that convictions were entered for all three counts of assault.
This appeal follows.
D E C I S I O N
Galle raises several arguments, both through counsel and on his own behalf. First,
Galle contends that sufficient evidence does not support his conviction for first-degree
assault because D.E.’s injuries do not amount to great bodily harm. Additionally, Galle
argues that the district court improperly ente red convictions of lesser-included offenses.
And Galle points to several other instances of alleged error in his pro se supplemental brief,
including ineffective assistance of counsel and the denial of a self-defense jury instruction.
We address each argument in turn.
I. Sufficient evidence does not support Galle’s first-degree-assault conviction.
Galle first argues that D.E.’s injuries do not amount to great bodily harm. As a
result, he maintains that his conviction of first-degree assault is not supported by sufficient
evidence. To assess whether sufficient evidence supports a conviction, this court “carefully
examine[s] the record to determine whether the facts and th e legitimate inferences drawn

district court directed the jury to attempt to reach a consensus on the first-degree-assault
charge and to inform the court if they could not do so.

8
from them would permit the jury to reasonab ly conclude that the defendant was guilty
beyond a reasonable doubt of the offe nse of which he was convicted.” State v. Griffin ,
887 N.W.2d 257, 263 (Minn. 20 16) (quotation omitted). When direct evidence supports
an element of an offense, this court’s review is limited “to a painstaking analysis of the
record to determine whether the evidence, when viewed in the light most favorable to the
conviction, was sufficient to permit the jurors to reach th e verdict which they did.”
State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) (quotation omitted). We assume that the
jury believed the state’s witnesses and did not credit any testimony to the contrary.
State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not overturn a jury verdict if
the jury could have reasona bly found the defendant guilty , giving due regard to the
presumption of innocence and the burden of proof beyond a reasonable doubt. Griffin,
887 N.W.2d at 263.
Additionally, when evaluating a sufficien cy-of-the-evidence claim, it is often
necessary to interpret a criminal statute because the statute’s meaning is intertwined with
whether the state met its burden of proof. State v. Vasko , 889 N.W.2d 551,
556 (Minn. 2017). And we consider questions of statutory interpretation de novo. Id.
To obtain a conviction for first-degree assault, the state must prove that an
individual “assault[ed] another and inflict[ed] great bodily harm.” Minn. Stat. § 609.221,
subd. 1 (2016). “Great bodily harm” is defi ned as “bodily injury which creates a high
probability of death, or which causes serious permanent disfigurement, or which causes a
permanent or protracted loss or impairment of the function of any bodily member or organ
or other serious bodily harm.” Minn. Stat. § 609.02, subd. 8 (2016). Whether an injury

9
constitutes great bodily harm is a question for the jury. State v. Moore, 699 N.W.2d 733,
737 (Minn. 2005).
Both Galle and the state agree that the victim suffered a fractured tibia, a concussion,
and the subsequent symptoms stemming from his concussion. And both parties appear to
agree that the primary duration of D.E.’s injuries was roughly five to six weeks. 3
Accordingly, the question is whether these injuries—individually or collectively—amount
to great bodily harm. Although the definition of great bodily harm contains four potential
ways an injury may constitute that level of harm, only two of those ways appear possible
here: “protracted loss or impairment of the f unction of any bodily me mber or organ” and
“other serious bodily harm.” Minn. Stat. § 609.02, subd. 8.
Protracted Loss or Impairment of the Function of any Bodily Member or Organ
An injury that causes “protracted loss or impairment of the function of any bodily
member or organ” constitutes great bodily harm. Id. The statute does not define
“protracted.” Further, caselaw does not provide an explicit time frame for an injury to
qualify as such. However, the term “protracted” is commonly understood to mean drawn
out, prolonged, or lengthened in time. 4 The American Heritage Dictionary 1417-18
(5th ed. 2011).
With this understanding of the meaning of “protracted” in mind, we must determine
whether D.E.’s injuries—a fracture and a co ncussion—caused a drawn out or prolonged

3 The state notes that D.E. testified that he was unable to work for nearly four months and
points out that D.E. experienced symptoms of post-concussion syndrome “for a number of
weeks.”
4 This interpretation of “protracted” is consistent with our unpublished caselaw.

10
impairment of the functioning of his leg or hi s brain. After careful review of the record,
we conclude that D.E.’s injuries—considered separately or in total—did not. Although a
fracture, a concussion, or the combination of the two injuries could cause a protracted loss
of functioning in some cases, nothing in the record indicates that is the case here.
With respect to the fracture, D.E. had to use crutches and avoid bearing weight on
his leg for four to six weeks. This is not a protracted period of recovery. Further, D.E.’s
orthopedic doctor explained that, roughly five to six weeks after the assault, D.E.’s x-rays
appeared normal. Regarding his concussi on, D.E. suffered from symptoms including
headaches, sensitivity to light and noise, a di srupted sleep schedule, difficulty chewing,
and an inability to multitask for at least six weeks, though D.E. testified he was unable to
return to work for four mont hs. But his occupational therap ist testified that D.E. stopped
attending therapy after three sessions becaus e he could complete work-related tasks
without difficulties stemming fro m his concussion symptoms. Based on the nature of
D.E.’s injuries and recovery, we conclude that he did not experience a “protracted loss or
impairment of the function of any bodily me mber or organ” amounting to great bodily
harm.5

5 A potential separate basis for finding great bo dily harm is D.E.’s loss of consciousness.
Both A.J. and J.D. testified that D.E. appeared unconscious during at least a portion of the
assault. In State v. Stafford, the supreme court stated that, “[a]rguably, ‘great bodily harm’
is inflicted if one knocks someone out briefly.” 340 N.W.2d 669, 670 (Minn. 1983). But
in making that assertion, the supreme court cited State v. Jones, a case where the victim
was “unconscious and on the verge of shock . . . had to be put in a ‘shock suit’ for transfer
to the hospital . . . [and] did not regain consciousness until the following day.” 266 N.W.2d
706, 710 (Minn. 1978). It is evident from th e record that any loss of consciousness D.E.
may have experienced does not rise to the level contemplated by caselaw to constitute great
bodily harm. See id.

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Other Serious Bodily Harm
Having concluded that D.E.’s injuries did not result in “protracted loss or
impairment of the function of any bodily memb er or organ,” we consider whether D.E.’s
injuries amounted to “other se rious bodily injury.” In doing so, we must consider that
phrase “in the context of the other three alternative definitions.” Moore, 699 N.W.2d at
739. And we consider the totality of the injuries, rather than evaluating them in isolation.
See, e.g. , State v. Barner , 510 N.W.2d 202, 202 (Minn. 1993); State v. Anderson ,
370 N.W.2d 703, 706 (Minn. App. 1985), review denied (Minn. Sept. 19, 1985).
Again, the totality of D.E .’s injuries included a tibia fracture, a concussion, and
symptoms stemming from the concussion, including headaches, light and noise sensitivity,
a disrupted sleep schedule, and an inability to multitask for at least six weeks. Considering
these injuries in the context of the alternative definitions of great bodily harm—which
include a high probability of death or perman ent disfigurement—we conclude that D.E.’s
injuries do not amount to “other serious bodily harm.” D.E.’s leg fracture and his
concussion—both of which appeared to resolve within a normal time frame for recovery—
are not the type of severe, long-lasting injuries that support a finding of great bodily harm.
Our conclusion that D.E.’s injuries do not amount to great bodily harm is bolstered
by caselaw. In State v. Dye, this court concluded that a victim who was shot in the abdomen
did not suffer great bodily harm because the bullet did not hit any major organs and the
victim did not testify about permanent pain or scarring. 871 N. W.2d 916, 922 (Minn.
App. 2015). And in State v. Gerald, we concluded that two knife cuts on the back of the
victim’s neck and near his ear did not amount to great bodily harm. 486 N.W.2d 799, 802

12
(Minn. App. 1992). In contrast, the supreme court determined that a victim’s injuries
including multiple stab wounds that left scars, a swollen head making eating difficult for
three days, and a hand injury amounted to “other serious bodily harm” under the definition
of great bodily harm. Barner, 510 N.W.2d at 202; see also State v. Ali , 752 N.W.2d 98,
103 (Minn. App. 2008) (concluding that a victim who lost nearly an inch off one finger
suffered great bodily harm), review denied (Minn. May 27, 2009); Anderson, 370 N.W.2d
at 706 (noting that when considered as a whole, injuries including a lacerated liver, a head
laceration requiring stitches, a scar running th e length of the victim’s torso, bruises, and
other head injuries causing lapses of cons ciousness amounted to “other serious bodily
harm”). These cases demonstrate the type of severity necessary for an injury to amount to
great bodily harm. And when examining the in juries suffered by the victim in this case,
we are not persuaded that they amount to the level of severity necessary to support a finding
of great bodily harm necessary for a first-degree-assault conviction.
By concluding that D.E.’s injuries do no t amount to great bodily harm, we do not
dispute that D.E. suffered a horrific assault. Indeed, Galle’s actions in assaulting another
driver at a stoplight by kicking him in the head “like you’d kick a soccer ball” represent
disregard for the life of another. And the di strict court correctly noted that Galle is
fortunate that the victim did not suffer more serious injuries. But the fact that the victim’s
injuries could have been more serious—or even life-threatening—cannot support a finding
of great bodily harm where the actual injuries themselves di d not rise to that level of
severity. See Gerald, 486 N.W.2d at 802-03. This conc lusion is grounded in the assault
statute, where the legislature chose to focus on the injury to the victim rather than the

13
actions of the assailant in evaluating whether great bodily harm occurred. Id. And as we
have previously stated, “[a]lthough we find it anomalous that an individual who commits
a grievous assault on another may escape a first degree as sault conviction because the
victim is fortunate enough to escape serious injury, we are constrained by the language of
the statute.” Id.
Finally, although we reverse Galle’s first- degree-assault conviction, we are more
than satisfied that sufficient evidence supports his conviction of third-degree assault. In
contrast to the requirement of great bodily ha rm for first-degree assault, third-degree
assault requires proof that an individual “a ssault[ed] another and inflict[ed] substantial
bodily harm. Minn. Stat. § 609.223, subd. 1 (2016). And “substantial bodily harm” means
“bodily injury which involves a temporary but substantial disfigurement, or which causes
a temporary but substantial loss or impairme nt of the function of any bodily member or
organ, or which causes a fracture of any bodily member.” Mi nn. Stat. § 609.02, subd. 7a
(2016). Here, Galle’s injuries—a tibia fracture and a concussi on—clearly fall within the
level of injury amounting to substantial bodily harm. Indeed, both parties agree that the
record supports a finding of substantial bodi ly harm. Accordingly, we affirm Galle’s
third-degree-assault conviction and remand for resentencing on that count.
II. Galle’s conviction of fi fth-degree assault is a less er-included offense of his
third-degree-assault conviction.

Because we affirm Galle’s third-degree-assault conviction, we must decide whether
his conviction of fifth-degree assault must be vacated as a lesser-included offense. The
state concurs with Galle that the fifth-degr ee-assault conviction should be vacated.

14
Whether an offense is a lesser-included offe nse is a legal question, which we review
de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).
A criminal defendant “may be convicted of either the crime charged or an included
offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2016). One type of included offense
is “a lesser degree of the same crime.” Id., subd. 1(1). Here, fifth-degree assault is a lesser
degree of third-degree assault. See State v. Hackler, 532 N.W.2d 559, 559 (Minn. 1995)
(“If the lesser offense is a lesser degree of the same crime or a lesser degree of a multi-tier
statutory scheme dealing with a particular s ubject, then it is an ‘included offense’ under
section 609.04.”). Because it is a lesser-i ncluded offense, the di strict court erred by
entering a conviction for fifth-degree assault.6 Accordingly, we reverse Galle’s conviction
of fifth-degree assault and remand for corr ection of the warrant of commitment. See
State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984).
III. Galle’s pro se arguments do not warrant relief.
Finally, Galle raised arguments in his pr o se supplemental brie f, which we briefly
address below.7

6 At sentencing, the district court stated that “counts two and three are lesser included
offenses and convictions whic h will merge to count one and so I am not pronouncing a
sentence for counts two and three.” But the warrant of commitment reflects that
convictions were entered on all three counts. See Spann v. State , 740 N.W.2d 570, 573
(Minn. 2007) (stating that this court may look to the official judgment of conviction in the
district court’s file to determine whether an offense was adjudicated).
7 In addition to the arguments addressed in this opinion, Galle raised arguments concerning
the effectiveness of his appellate counsel and his sentence. Because the record does not
contain sufficient information regarding th e ineffective-assistance-of-appellate-counsel
claim, we decline to address it. See Leake v. State, 737 N.W.2d 531, 535-36 (Minn. 2007)
(stating that claims of ineffective assistance of appellate counsel during a direct appeal may
be properly raised as part of a first postconv iction appeal). Further, because our reversal

15
Ineffective Assistance of Counsel
Galle argues that at trial, his attorn ey made several decisions—including not
introducing D.E.’s prior medical records or calling a retained expert witness—that
amounted to ineffective assistance of counsel. In general, when the trial record provides a
sufficient basis to adjudicate an ineffective-assistance-of-counsel claim, the claim must be
brought on direct appeal. Leake v. State, 737 N.W.2d 531, 535-36 (Minn. 2007). “But a
claim of ineffective assistance of trial counsel that cannot be resolved on the trial court
record alone need not be brought in a direct appeal and may be brought in a postconviction
petition.” Id. We conclude that the record before us is insufficient to fully resolve Galle’s
arguments. Accordingly, we decline to decide this argument.
Self-Defense Jury Instruction
Galle also contends that he was entitled to a self-defense jury instruction. But at
multiple points th roughout the trial, Galle’s counsel clearly indicated that he was not
asserting the affirmative defens e of self-defense. And a dist rict court is not required to
give such an instruction where self-defense is not affirmatively asserted.
State v. Gustafson, 610 N.W.2d 314, 320 (Minn. 2000). This argument does not present a
basis for relief.
In sum, because the record does not contain sufficient evidence that Galle’s assault
victim suffered great bodily harm, we reverse his conviction of first-degree assault. But
because the record supports a conviction of third-degree assault, we affirm that conviction

of Galle’s first-degree assault conviction requir es resentencing, we decline to address his
arguments pertaining to his sentence.

16
and remand for resentencing. See Minn. R. Crim. P. 28.02, subd. 12. And because we
affirm that conviction, we vacate Gall e’s fifth-degree-assault conviction as a
lesser-included offense and remand for correction of the warrant of commitment.
Affirmed in part, reversed in part, and remanded.